Tuesday, June 14, 2011

Damage caps in Mississippi

Randy Wallace watched the oral argument today in Sears v. Learmonth, a 5th Circuit case in which the constitutionality (1890-wise) of Mississipp's tort damages cap ($1M in noneconomic, "pain & suffering" damages) has been certified to the Miss. Supreme Court. No clear tell from the bench, unless anyone was uncertain as to how Justice Kitchens will rule.

Philip Thomas has followed the case, but no report yet on the argument at his blog.

I think caps are an excessively blunt instrument for reform; the $500K med-mal cap is especially hard to justify, as few people can mess you up like a doctor can. But that's a policy question; I am a bit skeptical whether the caps are *unconstitutional*.

... I have a bizarre hypo on the constitutional issue at NMC's blog.
Leaving aside the Eighth Amendment and its Miss. counterpart, would a tort *plaintiff* be denied any right if the Legislature decreed that noneconomic damages were to be compensated by public whipping, not by cash?
Really, I don't know where I get these ideas. Now, where did I put my copy of Juliette?

... Philip has a good post up on what he saw at the argument. I continue to wonder why corporations think it's a good idea to send someone from NYC or Chicago or L.A. to argue in appellate court in Mississippi. Then again, the plaintiff had some guy from D.C. carrying the bulk of her argument, so go figure. (Randy Wallace comments at Philip's post that the yankees were indeed prone to try to talk over the justices. Not how we do it in the Southland, gentlemen.)


  1. The plaintiff argued that for the trial by jury to remain inviolate, the entire trial by jury including the award cannot be tinkered with by the Legislature unless the Legislature removes the entire common law cause of action. For example, the Legislature can remove the entire cause of action of an employee against the employer (Workers Compensation) and replace it with another system. In this way there is a benefit to the workers (lowered burden of proof, removal of fault, etc.) and employers (reduced damages available and set level of exposure). However, the Legislature cannot leave the cause of action in place and tinker with verdicts. Plaintiff distinguished this from causes of action that were not recognized at common law such as suits against the State. In those tort claims act cases (or any cases where the cause of action was established by the Legislature) the Legislature can validly set out the requirements for the cause of action and define the damages recoverable. The defendant had an interesting argument on this point. Citera said “I bet the plaintiff wouldn’t making this argument if the Legislature dictated that non-economic damages must be tripled after jury verdict.” Peck didn’t respond to this argument, but did state that it would be constitutional for a state constitutional amendment to limit awards. Peck also noted that Texas has done exactly that and therefore constitutional challenges to caps are not likely to succeed in Texas on state law constitutional grounds.

    Justice Dickinson asked if the the plaintiffs were only arguing that damages available as non-economic damages at common law prior to the enactment of the constitution were protected from legislative action. It appeared as if he had some distinction in mind between what was recoverable then vs. what is recoverable as non-economic damages now. I guess we will have to wait on the opinion to see where he was going with that.

  2. I think that's right re: W/C and MTCA cases -- they are creatures of statute.

    Wish I knew something about the history of noneconomic damages at common law. Dickinson sounds like he does.

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